In contravention of International Humanitarian Law.
Who are Michael Kovrig and Michael Spavor, the two Canadians held by China?
The Canadians known as “The Two Michaels”, Michael Kovrig and Michael Spavor, are to be charged with espionage by prosecutors in the People’s Republic of China. For over 18 months the two have been held in cells that are lit 24 hours a day and subjected to “interrogations” as much as three times a day. They have not been allowed contact with Canadian consular officials for months and haven’t communicated with their families since they were detained. They face the death penalty if found guilty of the trumped up charges by a Chinese court.
This is clearly retribution on China’s part for Canada’s cooperation with the United States in the Meng Wanzhou legal matter. The Huawei heiress has been afforded the due process of law that has been heretofore been witheld from the Two Michaels and that they will likely never see for themselves. While she remains on house arrest in a luxury residence, the Canadians have and will continue to languish in tortuous conditions.
Customary International Humanitarian Law
I have previously made the contention that we are in fact at war with the PRC, the Chinese Communist Party to be specific. While this may in fact be the case, internationally accepted rules of war are not applicable here because there has been no declaration of war made, nor has there been any open armed conflict between the parties. China is however in contravention of Customary International Humanitarian Law (IHL) as set out by the International Committee of the Red Cross (ICRC) in Geneva, and should therefore be treated accordingly by the world community.
The Geneva Conventions
Created in 1864, the current Geneva Conventions (adopted in 1949) are the treaties and agreements agreed to internationally that establish the rules and protocols pertaining to the Laws of Armed Conflict, specifically with regard to the treatment of prisoners and civilians during times of national or international armed conflict. In 1977 two additional protocols were adopted which were intended to strengthen protections for the victims of international armed conflicts as well as national armed conflicts (civil wars).
However, according to the ICRC:
Article 75(2)(c) of the 1977 Additional Protocol I states that the taking of hostages is an act which is and “shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents”https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_rul_rule96#:~:text=Any%20person%20who%20seizes%20or,to%20do%20or%20to%20abstain
In addition Rule 96 of the Customary IHL states:
International human rights law does not specifically prohibit “hostage-taking”, but the practice is prohibited by virtue of non-derogable human rights law because it amounts to an arbitrary deprivation of liberty (see Rule 99). The UN Commission on Human Rights has stated that hostage-taking, wherever and by whoever committed, is an illegal act aimed at the destruction of human rights and is never justifiable.https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule96
Hostage Taking Defined
Rule 96 also provides the following definition of a hostage taking:
The International Convention against the Taking of Hostages defines the offence as the seizure or detention of a person (the hostage), combined with threatening to kill, to injure or to continue to detain the hostage, in order to compel a third party to do or to abstain from doing any act as an explicit or implicit condition for the release of the hostage. The Elements of Crimes for the International Criminal Court uses the same definition but adds that the required behaviour of the third party could be a condition not only for the release of the hostage but also for the safety of the hostage. It is the specific intent that characterizes hostage-taking and distinguishes it from the deprivation of someone’s liberty as an administrative or judicial measure.
Although the prohibition of hostage-taking is specified in the Fourth Geneva Convention and is typically associated with the holding of civilians as hostages, there is no indication that the offence is limited to taking civilians hostage. Common Article 3 of the Geneva Conventions, the Statute of the International Criminal Court and the International Convention against the Taking of Hostages do not limit the offence to the taking of civilians, but apply it to the taking of any person. Indeed, in the Elements of Crimes for the International Criminal Court, the definition applies to the taking of any person protected by the Geneva Conventions.
Now while the Chinese haven’t overtly stated that they would release the Two Michaels if Canada were to release Meng Wanzhou, it could very certainly be implied given the timing of the events to this point. I’m not an expert in international law by any means but it does appear to me that this would meet the standard to sustain a charge of kidnapping.
That said I am going to talk to someone I know who IS an expert in international law to get his perspective on this. He’ll be able to tell me whether or not this is a viable option that could be put on the diplomatic table. In the meantime, the world needs to continue to apply pressure on the PRC to free Michael Kovrig and Michael Spavor.